Law Offices of Gordon P. FiremarkAsked & Answered | Law Offices of Gordon P. Firemark | Entertainment Attorneys

Asked & Answered: The Wizard of Oz and the public domain.

Gordon Firemark — Sat, 21 Jan 2012 07:00:38 +0000

An anonymous viewer asks whether the producers of “Oz: The Great and Powerful”, scheduled for release in 2012 needed to make an arrangement with the copyright holders for “The Wizard of Oz”, or whether a loosely based “homage” can be done without copyright clearance

My Answer:

Asked and Answered: What rights do I need for a classical music film score?

Gordon Firemark — Fri, 12 Aug 2011 07:00:45 +0000

Paul is planning to use public domain music, reinterpreted for his film score and wants to know what rights and agreements he will need.

QUESTION:

Paul wants to know: Does a film producer need copyright permission for a classical film music score, if the score is being reinterpreted by the producer’s own composers and musicians. He also asks whether copyright law applies to any of this, the original classical piece, the new score, or what.

ANSWER:

Well, let’s take the last part first. Copyright law protects any original work of authorship for a period of time. Nowadays, works are protected for the life of the author plus 70 years. Under older copyright law, the time-frame(s) were much shorter. Right now, most works created prior to 1923 are in the public domain, and can be used without permission.

So, if you’re using a Beethoven piece written in 1820, you don’t need anybody’s permission to use the COMPOSITION. But, if you’re using an existing RECORDING of that piece, you most likely DO need permission from the record label.

If you’re having a new recording made, and you’ve got a composer and musicians doing a new arrangement, or interpretation, or a mashup, then THAT is actually a new work, and you do need permission to use it.

What you really need is a “work made for hire” agreement with those folks… So you will own the copyright in the new work. If you don’t have that in writing, THEY, not you will own it.

If you own the copyright, because you do have such a contract, then you’re free to use it however you want, including making different interpretations. But, if you don’t own it, then the opposite is true, and you’d need a license to do anything at all with the score… even exhibiting the film.

The same rule is true if you’ve got a composer creating an entirely new, original score. you need to have written contracts with the composer who does the score, and with the musicians who perform it.

Its easy, in the excitement of getting a new project off the ground, to leave this kind of thing to good faith… but copyright law can be tricky and this requirement that things be in writing is important… So take the time to get things done right. The good news is that this isn’t a matter of reinventing the wheel, so an experienced entertainment lawyer can get you the contracts you need quickly and cost-effectively.

Asked and Answered: Orphan Works

Gordon Firemark — Fri, 05 Aug 2011 07:00:31 +0000

Guy asks what to do about rights to a book, when you can’t find the heirs of a deceased author, and the publisher is defunct.

From both a legal and an ethical standpoint, you have to get the rights. You wouldn’t go ahead and build a house on land you don’t own, just because you can’t find the owner… the same goes here.

It sometimes is difficult or even impossible to track down the author, or the heirs of the author of a work, but if the work is covered by copyright, it’s still an infringement if you base your work on that material.

This is what’s called the “orphan works” problem, and it’s been a somewhat controversial topic in the legal, regulatory and legislative world for the past few years. Some of the proposals out there would have a sort-of escrow system set up, so if you’ve made a good-faith effort to find the owner, but can’t you put a reasonable license fee in escrow, and if they later surface, they can access that money. The problem is, what if that copyright holder would have refused ANY amount of money, and just doesn’t want a movie made based on his book, poem, or whatever. That’s his right under copyright, and this rule would take away that right.
There are some other proposals out there, and you can read more about the whole situation at a pretty good website called ORPHANWORKS.NET.

Congress hasn’t been able to pass legislation on the issue yet, despite trying several times, so for now, the rule is still that you have to have the permission..

. So, you’ve got to find the copyright holder. That may be the author’s heirs, or it could be the publisher, and if the publisher’s gone out of business, someone or some company probably did acquire the rights to that publisher’s catalog. That someone is called the “successor in interest”. Usually, the government records relating to the closing of the company will give some indication of who took over the assets. This can mean trips to various government archives, courthouses, etc., and it’s fairly detailed legal investigative work…

But, start with a search of the copyright office records. For newer works, (those created since 1978), they’re computerized and searchable online at copyright.gov (assuming the work was registered..). For older works, this is going to mean a trip to the library of congress… you can hire a service to do the search for you… But ultimately, you’ve got to keep trying.

Asked and Answered: Using a pre-existing film title for a new screenplay

Gordon Firemark — Fri, 29 Jul 2011 22:28:35 +0000

Damian asks about using a pre-existing film’s title for his new screenplay. Here’s my answer:

QUESTION

Damian is wondering what the protocol was for using a title for my screenplay that, after checking on IMDB the title, has already been used on a produced motion picture. If i used the title would I have to pay a fee to the owner’s of the previous production? In the past I’ve seen movies use an old title but I have no idea if compensation was required to do so.

ANSWER:

Well Damian, this is a little bit tricky. Generally, the best legal advice is to avoid using an identical or confusingly similar title to a film that’s already been released.

BUT, the law isn’t that cut-and-dried. Titles aren’t protected by copyright law. SOME titles are protected by TRADEMARK and UNFAIR COMPETITION law, but not every title gets that kind of protection… These laws deal with protecting the public against confusion. For example, if you title your film “Halloween”, it’s reasonable to expect that the public might consider your film to be another in the series of films that makes up the Halloween franchise. But, if you chose a title of a very old, obscure, film, that kind of confusion is much less likely.

So, it really depends on the particular title in question, and whether there’s a likelihood that the public will be confused into believing that one is a remake, sequel, or related project to the other.

But even with that obscure classic film, my advice would be come up with another title… save yourself the hassle.

Asked & Answered: Original vs. Adapted works

Gordon Firemark — Fri, 20 May 2011 07:00:34 +0000

Q: “When is a work ‘Original’, and when is it an ‘adaptation’?”

This is intended as general information only and does not establish an attorney-client relationship. It is not a substitute for a private, independent consultation with an attorney selected to advise you after a full investigation of the facts and law relevant to your matter. We will not be responsible for readers’ detrimental reliance upon the information appearing in this feature.

Thinking of Producing it yourself? subscribe to my FREE e-course “6 ways to Finance A Feature Film” by visiting http://firemark.com/minicourse

Asked & Answered: How do I get a lawyer to represent my script?

Gordon Firemark — Tue, 17 May 2011 07:00:39 +0000

Q: Dave asks how to get an entertainment lawyer to sell a script. I give my answer

Asked & Answered: Finder’s Fees to friend with contacts? [Video Answer]

Gordon Firemark — Fri, 13 May 2011 07:00:32 +0000

In this video, I answer a question about whether it’s OK to pay a finder’s fee to a contact who facilitates sale of a script.

Let me know your thoughts about the video format for these Asked & Answered topics. Do you like the video? Hate it? Use the comments.
This is intended as general information only and does not establish an attorney-client relationship. It is not a substitute for a private, independent consultation with an attorney selected to advise you after a full investigation of the facts and law relevant to your matter. We will not be responsible for readers’ detrimental reliance upon the information appearing in this feature.

Thinking of Producing it yourself? subscribe to my FREE e-course “6 ways to Finance A Feature Film” by visiting http://firemark.com/minicourse

Asked and Answered – registration numbers: to show or not?

Gordon Firemark — Sat, 07 May 2011 00:56:17 +0000

Q: Is is worth registering a script with both the WGA and US Copyright Office and then should the registration numbers by shown on the title page of the script? I give my answer:

Asked and Answered: Using public buildings as setting for a film.

Gordon Firemark — Thu, 21 Apr 2011 07:00:23 +0000

Q: If you wish to include public buildings as set pieces in your script, will that cost money and require permits to shoot if the script is produced? Would avoidance or substitution of any signage make any difference?

A: First let me just advise that you let the producer worry about this. Your script WILL get changed along the way to production, to accommodate various production considerations, just like this one. Set your scenes where you think they should be set and don’t worry about how the production will accomplish it. That’s someone else’s job.

To answer your question, I first have to address a semantic point. There are “public buildings” and there are buildings that are “open to the public”. There’s a major difference.

A “public building” is a structure that’s owned by the public (i.e., the government). Examples are The White House, the Library of Congress, the Federal Building, state capitol buildings, courthouses, police stations, etc. Merely showing such structures in a film doesn’t require a permit, but actually shooting in such places typically involves permits, security, and quite a bit of hoop-jumping. In many instances, security or other considerations may lead the government to place serious restrictions on access to such facilities. But, under the first amendment, a complete ban would be very difficult for the government to enforce.

On the other hand, buildings that are open to the public, but which are privately owned (like banks, malls, grocery stores, and office buildings) will also frequently require government-issued permits… but more importantly, you’ll need permission from the owner of the building. It is likely that those owners will expect to be paid a fee for use of the location. Private property owners have the right to deny access to the location altogether, and therefore the right to demand payment when granting such access.

Substitute signage probably won’t make a difference if the building itself is easily recognizable… and since we’re dealing with this question, I have to presume we’re not talking about generic-looking office buildings.

So, short-answer made long… Yes, it will cost money, require permits, and there’s really no way around it.

Asked & Answered: Can I use a standard release for real people in my script?

Gordon Firemark — Fri, 15 Apr 2011 07:00:42 +0000

Q: My screenplay is based on a true story. Most of the characters are long deceased and the facts of the story are on public record. However there are four people still living whose names appear and two of which are characters. I’m not doing life stories of either rather just using their names and depicting brief appearances. Is there some kind of standard release I can obtain without a long legal document?

A: This question raises a number of issues. First off, if the events depicted really happened, and the persons involved were really involved, it’s possible that their consent won’t even be needed. As the writer, you might prefer to let the decision whether to get a release fall on the shoulders of the producer of the project, either before or after he buys the project. But, you may prefer to err on the side of caution, and obtain a release to include when selling the script. If so, it need not be a lengthy document, but it IS a legal document, so it’s going to be more than a paragraph or two. What’s involved is a person relinquishing some of their rights, so it’s important that the document be thorough and complete. (The version I tell my clients to use fits on a single page… but just barely)

Lawyers hate the phrase “standard contract”, and will tell you that every legal situation is different, and that legal documents like contracts need to be custom-tailored to the particular situation. While this is true, there are some generic forms available on the web, or in form books. The trick(s) are knowing where to find a good form, and whether the form you’ve selected is appropriate to your particular situation.

As with most of my answers in this column, I have to recommend that you hire an attorney to give you more customized legal advice, and if necessary to draft a suitable document for your project. You might be surprised how little it costs to get things done right… so you can sleep better at night.